November 1, 2010: What Affect Does Divorce Have On Jointly Filed I-751 Petition?

What Affect Does Divorce Have on Jointly Filed I-751?

I received my green card through marriage. My wife and I are still married. I recently received an I-797c Notice for the I-751 Form that I filed and it extends my conditional green card another year while the USCIS determines whether they should give me a permanent green card.

The problem is our relationship has seriously degraded. It started with the most passionate love, but lately we don’t even sleep in the same room. My question is: If we file for divorce, will that affect my ability to get a green card when the USCIS reviews my application?
— Anonymous

It appears that you properly filed the I-751 as a joint petition because you were married to your spouse at the time it was filed. If you proceed and divorce your spouse, you will have to notify the United States Citizenship and Immigration Service (USCIS) about this fact. The divorce will change the type of filing from a joint petition to a waiver petition.

According to a memorandum that was published on April 3, 2009 by Donald Neufeld, the Acting Associate Director for the United States Department of Homeland Security (USDHS), USCIS, if a Service Center Immigration Service Officer (ISO) finds out that the married couple are legally separated or divorce proceedings are pending, the ISO is supposed to issue a Request for Evidence (RFE) to allow the person 87 days to submit proof of the legal termination of the marriage, such as a divorce decree.

Once finalized, the individual should submit a copy of the divorce decree and a request to have the joint petition be treated as a waiver petition. The ISO is supposed to amend the I-751 joint petition to reflect that it is now an I-751 waiver petition and make a decision based on the merits of the case. The ISO may approve the case without needing further evidence of the marriage, or it may schedule the person for an in-person interview at a local Field Office.

Either way, a decision will be made on whether you are able to prove that you married your spouse out of love or for the primary purpose of obtaining an immigration benefit. It should be noted that before this memorandum was issued, the I-751 joint petition was automatically cancelled upon the finality of the divorce, and the individual would have to file a brand new I-751 petition as a waiver. The memorandum gives persons who are separated from their spouse an alternative to having to re-file the I-751 as a waiver once the divorce is finalized.

It may be wise for you to consult with an experienced immigration attorney to discuss all of your options and the possible consequences.

Michael Shane and Evan Shane, Immigration Attorneys

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